Posts Tagged ‘Ninth Circuit Court of Appeals’

JULY 9, 2012 VOLUME 19 NUMBER 26
Surveys indicate that recipients of Medicare benefits are consistently pleased with the care they receive. Hospice patients (and their families) often express even higher levels of satisfaction — even though the patient so often dies. But not all hospice patients are pleased with the care they receive, and some will inevitably want to challenge the care providers’ decisions. How do they do that? It can be difficult to figure out.

Harold Block (not his real name) provides a case in point. When his wife was diagnosed as terminally ill, Mr. and Mrs. Block decided to enroll her in a hospice program available through Medicare. All of her care was provided by the hospice provider, and Medicare paid virtually all of the costs of care.

Mrs. Block soon found that the pain medications she was receiving were simply not adequate. Her attending physician agreed, and prescribed Actiq, a powerful drug intended to treat “breakthrough pain.” Mr. Block immediately filled the prescription, paying out of his own pocket. In the last month of his wife’s life he paid $5,940 for the painkiller.

A few months after his wife’s death Mr. Block submitted the receipts for her medications to the hospice organization for payment. They declined to reimburse him. He wrote to the hospice group again, noting that the drug had been prescribed by her attending physician, that it had been part of her care plan (which had been signed by her hospice team, as well), and that he intended to appeal the denial of coverage. The hospice organization told him he should address his appeal to National Government Services, a “fiscal intermediary” that handles Medicare provider’s claims.

Mr. Block wrote to the fiscal intermediary. He received a response telling him that only the legal representative of his wife’s estate could pursue the claim. He sent back documents showing he had been appointed as personal representative of her estate. He received another letter telling him he would have to prove that he had legal authority. He sent another copy of the legal documents. Frustrated, he hired an attorney, who wrote to the Centers for Medicare and Medicaid Services (CMS), telling them that Mr. Block wanted to appeal the denial of coverage for his wife’s medication.

CMS responded to the attorney saying that only the original hospice provider could appeal the denial. Since he was seeking to appeal a denial of coverage BY the same hospice provider, Mr. Block and his attorney decided he would need to sue CMS.

Eighteen months after his wife’s death, and still not having gotten any substantive answer to his request for reimbursement, Mr. Block filed a lawsuit against CMS in California’s federal court. His allegation: CMS had to provide an appeal mechanism for dissatisfied hospice patients under Medicare law and federal Constitutional principles. CMS’s response: there IS an appeal process, just not the one that Mr. Block had been told about. The trial judge, based on CMS’s representations about an available appeal process, dismissed his lawsuit.

The Ninth Circuit Court of Appeals upheld the dismissal, finding that there is an appeal process for unhappy hospice patients — though no one in the Medicare or hospice system seemed to be able to tell Mr. Block where he should file his appeal or how it would work. The first step in the appeal process, wrote the appellate court, would be for Mr. Block to request the hospice provider to reconsider its denial (forget that the hospice provider already told Mr. Block — incorrectly — that he should appeal to the fiscal intermediary). Next step: ask for reconsideration of the redetermination (no, we’re not kidding here). Next step after that: appeal to a Medicare Administrative Law Judge, then to the Medicare Appeals Council for review and then, if none of those steps has worked, to court for formal judicial review.

“We understand [Mr. Block’s] frustration, having been misinformed by CMS and forced to hire an attorney and bring suit to be properly informed of his right to appeal,” wrote the appellate court. Notwithstanding that frustration, wrote the judges, Mr. Block “already has the only relief he seeks — he and other hospice beneficiaries may utilize the [CMS] procedures to appeal a hospice provider’s refusal to provide a drug or service. We expect that the Secretary [of CMS] will take action to ensure that her agencies are properly informed in the future.”Back v. Sebelius, July 5, 2012.

For our part, we look forward to seeing clarification of Medicare hospice beneficiaries’ right to appeal unfavorable decisions. With that appellate process clarified, satisfaction levels can only improve even further. We also hope that Mr. Block gets his $5,940 back sometime soon — he’s waited four years for it so far. To that end, CMS has agreed not to assert that Mr. Block waited too long to file his appeal — which would be the case if he had just waited for those four years to pursue his claim.

In 1994 and again in 1997, Oregon voters approved the first law permitting physician-assisted suicide in the U.S. In each of the six years since the law was implemented, about 30 terminally ill Oregon residents have used the “Death With Dignity” Act to end their lives with the help of physicians. It is not easy to comply with the Act’s terms; it is available only to long-time Oregon residents who are terminally ill, and it requires psychological assessment of the patient and consistent requests over time. It also requires a sympathetic and cooperative physician to prescribe medication and a pharmacist to dispense the lethal dosage of drugs.

U.S. Attorney General John Ashcroft has made clear his disapproval of the Oregon law. In November, 2001, Mr. Ashcroft issued a Directive to officers of the federal Drug Enforcement Administration. The Directive insists that physician-assisted suicide serves no legitimate medical purpose, and instructs the DEA to prosecute any physician who prescribes a lethal dose of narcotics or other “controlled substances.” It also directs prosecution of any pharmacist filling such a prescription, and effectively threatens both physicians and pharmacists with loss of professional licenses if they utilize the Oregon law.

A physician, a pharmacist, several terminally ill patients, and the State of Oregon brought suit in Oregon Federal Court to have Mr. Ashcroft’s Directive rendered invalid. They argued that Mr. Ashcroft had no business interfering in the doctor/patient relationship, and no authority to impose his views of proper medical care on state governments.

Judge Robert E. Jones of the Federal District Court in Oregon agreed, and permanently enjoined the Attorney General from enforcing his own Directive. Mr. Ashcroft appealed that ruling.

The Ninth Circuit Court of Appeals affirmed Judge Jones’ ruling. The appellate court noted that the Controlled Substances Act, on which Mr. Ashcroft had relied for his Directive, was intended to combat drug abuse, not to regulate medical care. That job should be left to the states, according to the ruling, and until Congress acts the Attorney General is powerless to enforce his Directive. Besides, as the appellate court pointed out, Mr. Ashcroft is a lawyer, not a physician, and he and his office are poorly qualified to make medical decisions. Any role the administration is to have in medical decisions should be voiced by the Department of Health and Human Services, not the Attorney General.

One other problem with the Directive, said the two judges in the majority, is that it does exactly what Mr. Ashcroft intended it to do. Because of the fear of prosecution or loss of license, the Directive would have a chilling effect on physicians, pharmacists and other health care providers, as they might not dare risk their livelihood and freedom to provide patient care in a manner approved by Oregon voters. State of Oregon v. Ashcroft, May 26, 2004.

One of the three appellate judges hearing the case dissented, and would have approved the Directive. It is likely that the Supreme Court will be asked to resolve the dispute over Mr. Aschroft’s Directive.